Published in 26/02/2020, Valor Econômico
We must consider the property regime adopted in the marriage in the succession of the spouses
“It is possible that the inheritance left by the death of one of the spouses remains entirely with the living spouse? Our situation is as follows: childless couple married in partial community property. I have a living mother, deceased father and a sister. My wife no longer has parents and has two brothers. We had no assets before the marriage, only the inheritance of our parents’ assets. My parents’ assets have already been transferred to my sister and I, and my mother has the right of usufruct. My wife’s parents’ assets have already been divided by the inventory of her parents’ deaths. These inherited assets were transferred to us when we were already married”.
Luciana Pantaroto, CFP, responds:
Your new condition of non-resident must be communicated to all income payment sources; the tax over them will change. Dear reader, your concern with the financial impacts of the succession is opportune, as the predictability of these impacts allows the analysis and, consequently, the taking of important decisions for the future of your family.
The succession of spouses must observe the property regime adopted in the marriage. As your marriage is governed by the partial community of property, I will return to the concept of this regime to facilitate understanding.
The partial community of property provides, in short, that the property and rights acquired costly during the marriage are considered common property of the couple. Property and rights acquired by spouses before marriage, and those received through inheritance or donation, even during marriage, belong only to the spouse who acquired them.
Thus, the individual assets of each spouse is composed of his or her private assets (acquired before the marriage or by inheritance/donation) and also by the ideal half of the couple’s assets (acquired costly during the marriage), which is called moiety.
If a person married under this regime dies, his or her individual assets (private assets and half of the couple’s assets) will be allocated to his or her heirs in accordance with the succession rules.
In addition to being entitled to the other half of the couple’s assets by moiety, the surviving spouse may be entitled to the inheritance: the Brazilian Civil Code establishes an order of preference for the transmission of the inheritance. According to this rule, in the absence of descendants, the surviving spouse will be heir in competition with the deceased spouse’s ascendants. In the absence of descendants and ascendants, the surviving spouse will be the sole heir.
So, if you die first, your wife and mother would be your heirs. Each will be entitled to receive half of the inheritance. In this case, the inheritance will correspond to your individual assets (half of the assets of the couple belonging to you and your private assets).
In both cases, the surviving spouse is still entitled to half of the couple’s assets by moiety and is also the heir of the deceased spouse.
Finally, if these rules do not meet your interests, individuals with necessary heirs (ascendants, descendants and spouse) are allowed to allocate up to 50% of their assets to any individual or legal entity.
A specialized professional will be able to guide you on the use of adequate succession planning instruments, such as donations, wills, etc., always respecting the legal limits.
